Terms and condition of purchase

 

These Standard Terms and Conditions of Purchase apply to all purchases of goods by Nexgen Metals, Inc., a California Corporation (“Buyer”). Buyer’s purchase of any goods from Seller is expressly limited to these Terms and Conditions, and any proposal for additional or different terms, or any attempt by Seller to vary in any degree any of these Terms and Conditions, is hereby objected to and rejected by Buyer. All references herein to “Seller” refer to the seller of goods to Buyer.

These Terms and Conditions are incorporated by reference in the agreement of Seller and Buyer, except as otherwise expressly agreed in writing by Seller and Buyer.

  1. Terms and Conditions, Acceptance and Modification. These Terms and Conditions constitute the complete, exclusive and fully integrated statement of terms and conditions between Seller and Buyer with regard to the matters contained herein. No terms or conditions other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify these Terms and Conditions shall be binding on Buyer unless expressly agreed upon in writing by an authorized representative of Buyer. In the event of a conflict between these Terms and Conditions and any purchase order (or other document expressly made a part of this agreement) signed by both parties, the terms of the signed document shall prevail. Seller’s delivery of any product that is the subject of this agreement to Buyer shall constitute acceptance of the Buyer’s offer under these Terms and Conditions, and Buyer hereby objects to and rejects any and all additional or different terms proposed by Seller.
  2. Purchase Orders. Buyer will not be liable for any order of goods from Seller unless such order is issued on Buyer’s own purchase order form or such other form as may be agreed to in writing by an authorized representative of Buyer (each a “Purchase Order”). The price set forth in Buyer’s Purchase Order is firm and is not subject to change or adjustment without the prior written approval of an authorized representative of Buyer. Seller may not cancel an order once placed by Buyer without Buyer’s confirmation in writing.
  3. Risk of Loss and Delivery. Notwithstanding anything to the contrary herein, the risk of loss or damage of goods shall remain with Seller until actual delivery of the goods to Buyer at the delivery point specified on the Purchase Order, or at such other delivery point specified in writing by Buyer. Time is of the essence with respect to the shipment and delivery of the goods by the date set forth in the Purchase Order and is of critical importance to Buyer.
  4. Seller expressly warrants all goods sold to Buyer to (i) be free from defects in design, workmanship and material; (ii) conform strictly to all applicable specifications (including American Petroleum Institute specifications for OCTG products); (iii) be fit and sufficient for the purpose intended; and (iv) be merchantable, in addition to any other warranties provided by law. The foregoing warranties are assignable by Buyer and shall inure to the benefit of Buyer and Buyer’s successors, assigns and customers. All warranties shall survive Buyer’s inspection, testing and acceptance of the goods. Any and all attempts by Seller to limit, disclaim or otherwise restrict any of the warranties provided for herein are hereby objected to and rejected by Buyer and shall be null, void and ineffective without the written approval of an authorized representative of Buyer.
  5. a. Without limiting Buyer’s remedies as provided by the Uniform Commercial Code or any other applicable laws, the Seller agrees to indemnify, protect, save and keep each of Buyer and Buyer’s agents, employees, officers, directors, customers, affiliates and subsidiaries (collectively with Buyer, the “Indemnified Parties”) harmless from any and all obligations, injury, damages, penalties, claims, actions, suits, costs, expenses and disbursements (including reasonable legal fees) of whatsoever kind and nature, which at any time may be suffered or incurred by, imposed on or asserted against such Indemnified Party and in any way relating to or arising out of: (i) any actual or alleged death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result, in whole or in part, from any actual or alleged defect in any goods sold by Seller to Buyer, whether latent or patent, including actual or alleged improper construction or design of such goods or the failure of such goods to comply with specifications or with any express or implied warranties of Seller; (ii) the manufacture, possession, use or sale of any goods sold by Seller to Buyer; (iii) the negligent performance of Seller or any of Seller’s employees, agents, directors or officers pursuant to this agreement or a Purchase Order; (iv) any failure by Seller (or any of its employees, officers, agents, or affiliates) to comply with any and all applicable laws, codes, ordinances, or regulations; (v) the infringement of any patents, trademarks, service mark, trade names or copyrights respecting the goods; or (vi) any breach of this agreement by Seller (or any of its agents or representatives) or from any negligent act or omission (including strict liability), gross negligence or willful misconduct of Seller or any of its representatives.
    b. Seller agrees to obtain and maintain, at its expense, an adequate policy or policies of products liability insurance, with Seller’s endorsement naming Buyer as an additional insured, covering purchases of goods by Buyer from Seller.
  6. Inspection, Returns, Repair and Replacement.
    Buyer reserves the right, at any time (in addition to such other remedies as Buyer may have by contract or under applicable law), to return to Seller or require Seller to replace or repair any and all goods that do not conform to the warranties provided for herein or are otherwise not in accordance with the requirements of the Purchase Order respecting such goods (collectively, “Non-Conforming Goods”), at Seller’s cost and expense. Buyer may also terminate a Purchase Order, in whole or in part, on the basis of Non-Conforming Goods. Buyer’s failure to inspect and accept or reject goods shall neither relieve Seller from responsibility for Non-Conforming Goods, nor impose liabilities on Buyer. The inspection or test of any goods by Buyer shall not relieve Seller from any responsibility regarding defects or other failures respecting Non-Conforming Goods, which may be discovered subsequently by Buyer or one of its customers from time to time.
    b. In the event Buyer provides Seller with notice of Non-Conforming Goods, Seller shall (at Buyer’s option) promptly repair or replace such goods without cost or expense to Buyer. Seller warrants such replacement goods in the same manner and to the same extent that all such goods are warranted under these Terms and Conditions of Purchase. If Seller fails after reasonable notice to proceed promptly with the repair or replacement of the Non-Conforming Goods, Buyer may repair or replace such goods and charge all related expenses to Seller without voiding the warranties herein.
  7. Seller’s Damages. In the event of a breach of this agreement or any Purchase Order by Buyer, Seller’s exclusive remedy will be for Seller’s actual damages which shall in no event exceed the price of the particular goods with respect to which the damages occurred. Buyer shall in no event be liable to Seller for any of Seller’s damages to the extent such damages arise from Seller’s fault, negligence, willful misconduct or strict liability.
  8. Buyer’s Damages. In the event of a breach or repudiation of any Purchase Order or of this agreement by Seller, Buyer shall be entitled to recover any and all damages, including consequential, special, incidental, indirect and punitive damages, as applicable, in addition to all other rights granted by the Uniform Commercial Code.
  9. Governing Law. This agreement, and all sales of goods by Seller to Buyer, is governed by the laws of California, U.S.A., exclusive of its conflict of laws rules that would require the application of any other laws. Seller and Buyer each irrevocably agree that any legal proceeding seeking the enforcement or interpretation of this agreement must be brought in the state or federal courts located in Los Angeles, California, U.S.A. Each party irrevocably submits itself to the jurisdiction of any such courts, and waives any objection it may now or hereafter have to the placing of venue in any such courts and any right to remove any such action or proceeding to another court.
  10. Attorneys’ Fees. Seller agrees to pay for all reasonable attorneys’ fees and other legal expenses that are incurred by Buyer due to a breach of this agreement or any Purchase Order by Seller or in connection with the enforcement thereof.
  11. Seller shall not assign its rights or obligations hereunder without the prior written consent of Buyer. Any attempted assignment in contravention of the foregoing shall be void.
  12. No provision of this agreement may be construed against the Buyer as the drafting party. The term “including” means “including without limitation”.
  13. Third Party Rights. Other than rights of each party’s affiliates under this agreement, no third parties will have any rights under this agreement.
  14. Waiver by Buyer of any breach of these provisions (or any Purchase Order) shall not be construed as a waiver of any other breach. Should any clause, sentence or part of this agreement be held invalid, such holding shall in no way affect the validity of the remainder, which shall remain in full force and effect

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